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November 05, 2017


Hey Michael,

This case is more than schizophrenic-it's the ultimate Catch-22 on patent-eligibility. First, the broken and nonsensical Mayo/Alice framework conflates 101 with 102/103 by requiring a "novel concept." Then, the Federal Circuit holds in Two-Way Media that evidence relating to novelty/unobvious is inadmissible. Again, I could do better with a Ouija board in trying to determine what is and is not patent-eligible under 101.


I commend you on both a fine a write-up and some very interesting analysis in finding a distinction between Amdocs and Two-Way Media. I can't help, however, wondering if this isn't a "distinction without a difference," at least for purposes of ascertaining patent eligibility. The claim in Amdocs was rather broad and functional; nonetheless, the Amdocs panel appears to have used the specification to "flesh out" the meaning of the claim's enhancing limitation. I don't dispute that you're on to something here, but I doubt this sort of commentary would have ever been required for any one of the decisions penned by Judge Rich. Sigh.

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